SZMCE v Minister for Immigration - [2008] FMCA 1268

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMCE v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1268

MIGRATION – Review of decision of Refugee Review Tribunal – whether jurisdictional error – Protection (Class XA) visa – whether the Tribunal gave proper consideration to potentially corroborative material – the proper characterisation of such material – whether the Tribunal had a duty to enquire into the authenticity of such material – beneficial construction of Tribunal decision – the operation of s.420 of the Act in light of s.422B of the Act – natural justice – procedural fairness.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 91S, 424A, 474

SZGKX v MIC [2007] FCA 461
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
WAEE v Minister for Immigration & Indigenous Affairs (2003) [2003] FCAFC 184
Applicant M164/2002 v MIMIA [2006] FCAFC 16
Randhawa v the Minister of Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 1105
Minister for Immigration & Multicultural & Indigenous Affairs v VSAFof 2003 [2005] FCAFC 73
Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155
Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437
WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225
SZBEL [2006] HCA 63
Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 Abebe v Commonwealth (1999) 197 CLR 510
Minister for Immigration and Citizenship v Le [2007] FCA 1318 (2007) 242 ALR 455
SZJBA v Minister for Immigration and Citizenship [2007] FCA 1592
Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61

Applicant:

SZMCE

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 732 of 2008

Judgment of:

Orchiston FM

Hearing date:

4 August 2008

Date of Last Submission:

26 August 2008

Delivered at:

Sydney

Delivered on:

9 September 2008

REPRESENTATION

Counsel for the Applicant:

Dr J Azzi

Counsel for the Respondent:

Ms K Morgan

Solicitors for the Respondent:

Clayton Utz

ORDERS

The application filed on 28 March 2008 and the amended application filed on 30 July 2008 are dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $6,500 payable within six months (6) of the date of these Orders.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 732 of 2008

SZMCE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Application

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth), as amended, (the Act) seeking review of the decision of the Refugee Review Tribunal (the Tribunal) handed down on 4 March 2008 which affirmed the decision of the delegate of the respondent Minister (the delegate) to refuse to grant a Protection (Class XA) visa to the applicant.

Background

The applicant was born on 1 January 1979. He claims to be a national of Bangladesh.
The applicant arrived in Australia on 24 July 2007 on a Bangladeshi passport issued in his own name.
The applicant lodged an application for a protection visa on 6 August 2007 on the basis that he had been a popular and influential leader of the Bangladesh Nationalist Party (BNP) and feared persecution for reason of his political opinion. He claimed that he had been interested in politics since his student days and had joined the student wing of the BNP.
He further claimed that, in 2006, local Awami League (AL) members declared him a "stranger" in the area. He now feared being harmed in Bangladesh because false charges had been laid against him by AL members, relating to abuse of power when his party was in government. He claimed that the police were searching for him everywhere. Further, he was not keen to support the current (caretaker) government, which was unelected. He feared he would be persecuted by members of the opposition AL, or by government authorities if he returned to his country.
On 19 October 2007 the delegate refused to grant the applicant’s protection visa on the basis that he was not a person to whom Australia had protection obligations under the Refugees Convention (see Legislative framework).
On 16 November 2007 the applicant applied to the Tribunal for review of the delegate’s decision.

Legislative framework

Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (the Convention).
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or particular opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Section 91R and s.91S of the Act refer to the persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

The Tribunal proceedings

On 19 December 2007, the Tribunal sent a letter to the applicant inviting him to appear before it on 30 January 2008 to give oral evidence and present arguments. The applicant attended the Tribunal hearing on that day.

The applicant’s claims and evidence (Court Book (CB) 148-162)

Prior to the Tribunal hearing, the applicant submitted original documents, other material and a written submission dated 15 December 2007 to the Tribunal reiterating that there was a strong possibility he would be persecuted under the present caretaker government or in the future under an Awami League government. He further reiterated that the AL had filed a false case against him to ruin his political career.
The applicant made claims in his oral evidence at the Tribunal hearing, including that:
·he had become the organising secretary of the BNP in his area in the years after leaving college;
·he described himself as a BNP “leader”, that he had given speeches and was very popular; that he had stopped terrorism and extortion in his area, so people trusted him;
·on 10 September 2006, the occupants of an Awami League office came out and assaulted him and other BNP supporters with weapons;
·the documents submitted by him, alleging that he had attacked an Awami League office, had given rise to false charges being laid against him;
·the primary purpose of his frequent international travel trips in 2006 and 2007 was to seek political asylum because of the problems he was having in Bangladesh.

The Tribunal’s findings and reasons (CB 162-164)

I accept that the first respondent accurately summarises the Tribunal’s Findings and Reasons, including that:
The Tribunal, in relation to the applicant's claimed membership of the BNP and his role in that party:
·accepted that he was a supporter of the BNP and while at university was a supporter of its student wing;[1]
[1] CB 162.3
·did not accept that in 2001 the applicant campaigned for the local BNP candidate because his claim was implausible primarily because he was unable to describe in any detail what his role involved;[2]
[2] CB 162.4
·was unable to be satisfied that the supporting documents submitted by the applicant attesting to his being a BNP member, office holder or activist were genuine;[3] and
[3] CB 162.8
·did not accept that the applicant was an office holder within the BNP or that he played any leading role within the BNP.[4]
The Tribunal accepted the evidence provided by the applicant indicating that trumped up charges were being laid against supporters of the major political parties by their opponents in the period to which the applicant referred.[5] However, the Tribunal had considerable doubt that any false charges or allegations had been made about the applicant because he was a supporter of the BNP because:
·the applicant gave evidence that after his return to Bangladesh on 16 October 2006 he lived at the address named in the arrest warrant but was able to leave Bangladesh in early November, re-enter 2-3 days later and then exit again in early December; the Tribunal was satisfied that if the authorities had intended to arrest him on any charges at all, after 4 October 2006, they had ample opportunity to do so either at the relevant address or when he entered and exited the country;[6]
·the applicant’s behaviour (in failing to make any real attempt to seek asylum abroad until his arrival in Australia, his willingness to re enter Bangladesh on two occasions and his willingness to live at an address where he could be easily located by the authorities or his political opponents) illustrates confidence in his safety which is at odds with his claim that at least one arrest warrant had been issued to him and that Awami League members wanted to kill him[7]; and
·the Tribunal did not consider the arrest warrant documents genuine because: original arrest warrants are not generally available to the public; fraudulent versions of such documents are easily obtained in Bangladesh; the relevant document is undated; and the applicant’s evidence has changed over time as to what charges have been laid against him and the events that led to their being laid.
The Tribunal concluded that it did not consider plausible and did not accept that the applicant was a popular and influential leader or even a member of the BNP. Nor did it consider plausible and it did not accept that anyone in Bangladesh wished to harm him or that he was wanted by the authorities because of a political opinion imputed to him.
The Tribunal found that the applicant did not have a well-founded fear of being persecuted in Bangladesh for the Convention reason of political opinion. It therefore concluded that it was not satisfied that the applicant was a person to whom Australia has a protection obligation under the Refugees Convention.[8]
[4] CB 162.9
[5] CB 162.10
[6] CB 162.10-163.2
[7] CB 163.3
[8] CB 163.10-164.1

The proceedings before this Court

The applicant filed the application in this Court on 28 March 2008 setting out four grounds of review of the Tribunal’s decision. The applicant filed an amended application on 30 July 2008 setting out 2 grounds of review.
Dr Azzi of counsel appeared for the applicant before this Court on 4 August 2008. Ms Morgan of counsel appeared for the first respondent. Dr Azzi confirmed that the applicant sought to rely on the grounds set out in the amended application.

Grounds of amended application

Ground 1 of the amended application

Ground 1 of the amended application states that:
The Tribunal committed jurisdictional error in failing to take into account a relevant consideration.
Particulars:
a. The Tribunal considered that the applicant’s “failure to make any real attempt to seek asylum abroad until his arrival in Australia, his willingness to re-enter Bangladesh on two occasions … illustrate a confidence in his safety which is at odds with his claim that at least one arrest warrant had been issued for him and that AL members wanted to kill him.
b. The applicant claimed that he was advised that there is no system for seeking asylum in Singapore (CB 152.9).
c. While the Tribunal had regard to documents from Bangladesh tendered in support of the applicant’s claims and dismissed their veracity for a number of reasons it failed to have regard to an article regarding the situation that confronted the applicant in Bangladesh which was published in Singapore prior to the applicant arriving in Australia.
In his submissions, Dr Azzi submits that the Tribunal failed to have proper regard to the article appearing in the Singapore magazine, “The Voice of Bengal” (the article), (see Annexures “A” (copy of the article) and “B” (English translation) to the affidavit of the applicant sworn 4 July 2008), which document the applicant submitted to the Tribunal in conjunction with other documentation emanating from Bangladesh, in support of his case.
Relevant in the present context, the article states that:
on 10^th September the Awamilegue [sic] also involved him in a political case. Due to the threat of life by the terrorists and arrest warrant he was bound to leave the country at the begging [sic] of November, 2006.
Dr Azzi submits that “the nub of the case” is whether the 10 September 2006 incident referred to in the article occurred or not. He points to the importance therefore of the article in providing corroboration of the applicant’s claims about this alleged crucial incident as to when he had been assaulted by AL supporters outside their office, after which false charges were laid against him.
Dr Azzi submits that the article provides critical corroboration in that it is a “contemporaneous account while the applicant was overseas … before he claimed asylum in Australia”:
… it is critical in that sense to corroborate an incident that occurred on 10 September which the applicant says occurred and that he was implicated in and which resulted in the filing of a false case.
The Tribunal's assessment of this and the adverse inferences that it drew from the applicant failing to mention this particular incident in his protection visa application appears at 155 of the Court Book … (Court transcript 4/8/08 p 8).
He points to the fact that the Tribunal clearly had proper regard to all the documentation submitted by the applicant and emanating from Bangladesh “which were produced, created in Bangladesh and translated in Bangladesh”; that 1998 independent country information reports that forgery and document fraud is rife in Bangladesh; that the Tribunal “went to great lengths to destroy the authenticity of all these documents”; and thus placed no weight on them.
In contrast, however, he submits that these observations regarding the Bangladesh documents cannot possibly apply to the article; that it is “clearly Singapore so unlike all the other documents”; that “if you are going to lump all these documents in one, there is a qualitative difference” that it was not produced in Bangladesh; that “it’s not something that can be lumped in generically with all the other newspaper articles”; that “[the Tribunal] just seems to have overlooked [it]”; that it has not had “proper regard” to it; that it has not “engage[d] in the same or similar intellectual process that it did with all the other … documents” submitted by the applicant in support of his case; that “it went to great lengths to down the credibility of all the other documents and it just overlooked the magazine article”; that “page 155 to 156 of the Court Book exhaustively, paragraph to paragraph, seeks to demolish every document provided by the applicant bar one which is the magazine article and to say that it was produced in - created in Bangladesh is not an answer; it is published in Singapore”; that “it is a highly relevant consideration because it does corroborate a 10 September incident that the Tribunal drew adverse inferences about”; that:
it was a critical document and it is not a piece of evidence that could have been overlooked or that the Tribunal - well it is clear that the Tribunal in its reasons overlooked it. It didn't consider it material. There is nothing in the [Findings and Reasons] that comforts or confirms that it had actual regard - proper regard to this magazine article because it is a magazine. It is not a newspaper [emphasis added]
and hence does not fall within the exchange of questions and answers between the applicant and the Tribunal, summarised by the Tribunal, at CB 156-157, in regard to three “newspaper” articles submitted by the applicant in which stories were published about the applicant.
He further submits in this regard that:
The magazine from Singapore - the article in paragraph (h) was sent from Bangladesh but the issue about all the independent Country Information that the Tribunal looked into basically said "arrest warrants" and if we can look at it, and the letters of support on letterhead from the Bangladesh Nationalism Party, not Nationalist Party, the Tribunal took issue with that.
It had proper regard to all those documents but it didn't consider whether this magazine from - the article from Singapore had - what category of fraud does that in - or forgery does that come in to. It is not an arrest warrant, which are not available to the public. It is not a letter from the Bangladesh National Party. It is not from the local member of the Health Minister, it is not from anybody who has a vested interest or this - it is from an independent source it seems, it is published in Singapore (transcript p 15).
Dr Azzi also points to the following passage in the Tribunal’s Findings and Reasons (at CB 162):
The Tribunal also considers reliable the evidence from the U.S. Bureau of Democracy, Human Rights and Labor (1998) and DFAT (1996) that document fraud is a common phenomenon in Bangladesh, and that altered or counterfeit newspaper articles have also been produced in support of asylum applications. The Tribunal has expressed its considerable concern above about the truthfulness of his claims to have been an activist within the BNP. This, coupled with the fact that many of the documents [emphasis added] he has submitted refer to him as having played this role, that some of those documents name the party incorrectly, and that such documents can be readily obtained fraudulently, leaves the Tribunal unable to be satisfied that the supporting documents submitted by [the applicant], attesting to his being a BNP member, office holder or activist, are genuine.
He submits that the word "many" in the above passage cannot be construed, even when beneficially read, to mean all documents:
It deals with the documents from the party, fairly, it can be said, it deals with all documents that come in - submitted, related from the party or his affiliated party, and the official documents, the government documents, or police warrants or arrest warrants. But there is still this - and it is also talking about documents that he submitted as having played a role, an activist's role with the BNP.
He thus submits that:
[the Tribunal] made no findings and adverted to no country information propounding the likelihood of the Singapore magazine being concocted or somehow forged … from this oversight it may be inferred that the Tribunal did not consider the magazine article ‘to be material’ and that this may, in turn, reveal jurisdictional error … MIMA v Yusuf (2001) 206 CLR 323 at 346 [69] per McHugh, Gummow and Hayne JJ; WAEE v MIMIA (2003) 75 ALD 630 at [47]).
Dr Azzi further relies on the authority of SZGKX v Minister for Immigration & Citizenship [2007] FCA 461; 94 ALD 604 at [24] to submit that Conti J, in dealing with similar issues to the present case, (that is, whether the Tribunal had regard to a newspaper article corroborating the appellant’s claim to fear persecution for political reasons), rejected the Minister’s argument that s.430 of the Act does not impose a duty on the Tribunal to deal with adverse material and that “it is not open to a court to infer from the fact that evidence adverse to the findings made by a Tribunal has not been mentioned that it has not been properly considered.” He points to the following passage from that case in support of this submission:
[McHugh J’s] observations do not provide sufficient support for the Minister’s submission. As I would read the thrust of the foregoing dictum of McHugh J in Durairajasingham, his Honour’s emphasis appears to be on the need for the Tribunal to make clear the nature and extent of its reasons for rejection of evidence placed before it going to material issues in the proceedings, which, if accepted, would be susceptible to producing an ultimate outcome different to that which was reached. Counsel for the Minister further submitted in any event that the Tribunal did have ‘regard to the "material supplied by the appellant" and specifically referred to "various media reports from Sri Lanka" submitted by the appellant’, and reliance was placed in that regard by the Minister upon page seven of the Tribunal member’s reasons for decision, which included the following observations:
‘[t]he applicant also submitted other documents to the delegate, including:...
4. Various media reports from Sri Lanka
...The delegate found that the threats that the Applicant alleged he had received were not politically-motivated and therefore not Convention related.’
However, the issue remains as to adequacy or otherwise of the consideration afforded to the specific evidentiary material (at [23].

Dr Azzi submits that Conti J held that to have regard to the newspaper article, the Tribunal must do more than make a “fleeting reference” to it. It must engage in “an active intellectual process” (at [24]-[26] and the cases there cited).
On this basis, Dr Azzi asserts that the Tribunal committed jurisdictional error by failing to take into account highly relevant material, namely the article, “which if accepted, would be susceptible to producing an ultimate outcome different to that which was reached”, namely, that the applicant had a well founded fear of persecution.
In his oral evidence, the applicant told the Tribunal that this article, along with other documents submitted to it by the applicant prior to the hearing, (CB 151-153, listed a) to h)), had been sent to him by his brother in Bangladesh. The Tribunal recorded under the Claims and Evidence (at CB 152) that in his oral evidence at the Tribunal hearing, the applicant claimed that:
… he had been trying to get asylum in Singapore, but there was no provision for this there, then the editor of the magazine asked him for his story and published it. [The applicant] told the Tribunal he had not known this man intended to publish his story. As to how, if so, the editor had obtained a photograph of [the applicant] for publication, he said that he had got “all this stuff” from Bangladesh, and had asked his brother for the photograph. [The applicant] had not known why he wanted so many details about him and only realised later. Invited to explain to the Tribunal what he had made of a journalist seeking all these details about him, he said he realised the man was interested in publishing something about Bangladesh. He claimed that his brother, curious as to why the editor had contacted him, had obtained the magazine and sent it to[the applicant].
At the hearing, the Tribunal raised with the applicant his failure to mention the 10 September 2006 incident in his original protection visa application and provided him with the opportunity to explain the omission, summarised at CB 155 as follows:
As to why he had not mentioned his involvement in the 10 September 2006 incident in his submissions to the Department, he said that he had had no help or advice when he came to Australia. The Tribunal suggested to him that this incident would have been sufficiently significant to him that he would not have needed any advice in order to mention it. He responded that several people had helped write his statement in English, and that maybe they had not included it. The Tribunal told him that it could infer he was not involved in this incident and that the documents he had submitted alleging that he attacked an Awami League office on that day, which he claimed gave rise to false charges against him, were not genuine. He responded that the incident occurred, that the documents he had submitted proved it, and that he had told the person who wrote his statement about it.
In considering these submissions, it is clear that the applicant seeks to characterise the article as a document “from Singapore” and to exclude it from the references by the Tribunal to documents submitted by the applicant “from Bangladesh”. To do so is to exclude the article from the Tribunal’s findings in relation to fraudulent documents emanating “from Bangladesh” to which Dr Azzi concedes the Tribunal had proper regard and to which it gave no weight in reaching its decision.
The applicant also seeks to characterise the article as a “magazine” article and to exclude it from the references by the Tribunal to “newspaper” articles.
I consider the above distinctions sought by the applicant to be artificial in this case.
Firstly, it is important to consider the context in which each of these documents, including the article, have been dealt with by the Tribunal in its decision. They are set out together in the Claims and Evidence, and listed from a) through to h) inclusive by the Tribunal, under the following preamble:
[The applicant] submitted several original documents written in Bengali on letterhead, and incorporating various rubber stamps. According to translations of these documents (all of which were done in Bangladesh) [emphases added] they were … (CB 151).
The article is included by the Tribunal at point h) as follows:
h)an original Bengali language magazine published in Singapore, in colour but with a number of pages in black-and-white, including one containing the above article (again translated by a Dhaka-based translator) and which contained [the applicant’]s photograph (identical with that in the Bangladesh passport he claimed to have used to enter Australia).
Immediately thereafter, the Tribunal refers to the following oral evidence of the applicant at the Tribunal hearing:
[the applicant] told the Tribunal that all these documents had been sent to him from Bangladesh, and he had received them two days before submitting them to the Tribunal. His brother had collected them. Of the magazine from Singapore, he said that his brother had sent that to him as well. He claimed that he had been trying to get asylum in Singapore, but there was no provision for this there, then the editor of the magazine asked him for his story and published it. [The applicant] told the Tribunal he had not known this man intended to publish his story. As to how, if so, the editor had obtained a photograph of [the applicant] for publication, he said that he had got “all this stuff” from Bangladesh, and had asked his brother for the photograph. [The applicant] had not known why he wanted so many details about him and only realised later. Invited to explain to the Tribunal what he had made of a journalist seeking all these details about him, he said he realised the man was interested in publishing something about Bangladesh. He claimed that his brother, curious as to why the editor had contacted him, had obtained the magazine and sent it to [the applicant] [emphases added].
Given this context, clearly the Tribunal sought from the outset to treat these documents (all of which were “written in Bengali”; all of which were translated in Bangladesh; and all of which were “collected” and sent to the applicant by his brother from Bangladesh) in a generic manner. The article, similar to the other documents submitted to the Tribunal by the applicant, therefore had the same “Bangladesh” connection. I accept the submission by the first respondent in this regard that:
it is clear on the face of Annexure “B” of the applicant’s affidavit is a stamp which says, “GOVT OF BANGLADESH” … there is no dispute that it is translated in Bangladesh; there is no dispute it emanated from Bangladesh to the applicant. The fact that it appears to be, on its face, originally published in Singapore … is neither here nor there …
Likewise, when summarising the exchange between the applicant and the Tribunal (at CB 155), concerning why the applicant had not mentioned his involvement in the 10 September 2006 incident in his submissions to the Department, the Tribunal referred to the relevant supporting documents in the following generic manner:
The Tribunal told him that it could infer he was not involved in this incident and that the documents he had submitted alleging that he attacked an Awami League office on that day, which he claimed gave rise to false charges against him, were not genuine. He responded that the incident occurred, that the documents he had submitted proved it, and that he had told the person who wrote his statement about it [emphases added].
Equally, I accept that the Tribunal’s generic reference to “newspaper articles” clearly also encompassed reference to the article. I accept the submission by the first respondent that the Court should adopt a beneficial construction of the Tribunal decision and not “nit pick”. As observed by the High Court in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272]:
When the Full Court referred to "beneficial construction", it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector of Customs v Pozzolanic (22). In that case, a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be "concerned with looseness in the language ... nor with unhappy phrasing" of the reasons of an administrative decision-maker (23). The Court continued (24):
"The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error".
These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed (25). In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision (and see SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 at [25]; Hu v Minister for Immigration & Multicultural and Indigenous Affairs (2004) FCAFC 63 per Sackville J at [89]).
I thus consider that the Tribunal included the article in its discussion of newspaper articles submitted by the applicant, and even if it cannot be said with absolute certainty that the article was one of “the other two identical newspaper articles” referred to by the Tribunal in the following passage, (although it is difficult to escape this conclusion given that the Tribunal expressly referred in this context to the two newspaper documents f) and g), immediately preceding the article which is listed at h) and there are no other documents listed that could possibly be characterised in this way), it was clearly encompassed in the further generic reference to “any of the newspaper articles”:
Of the original newspaper dated 22 November 2007 (the Daily Janata) attached to which was a document in English purporting to be a translation of an article in this newspaper about [the applicant], at the hearing he pointed out to the Tribunal the article from which the translation had come. The Tribunal asked him why this and the other two identical newspaper articles he had submitted had been published just a couple of months before the Tribunal hearing. He responded that he was unsure, and that newspapers copy to each other's articles. The Tribunal asked him why these publications might have chosen to publish a story about him in particular. He responded that they published stories about people like him.
Of a photocopy of an identical article in a publication called The Daily Pother Alo, issue 23 November 2007, the Tribunal advised him of evidence from another source that fraudulent newspaper articles were widely used by Bangladeshis seeking asylum abroad. As a result the Tribunal could not simply assume that any of the newspaper articles were a reliable source of evidence. In response [the applicant] stated that journalist had a duty to publish such stories for the public. When a journalist praised a party activist, that meant they were praising the party [emphasis added] (at CB 156-157).
I further consider that the article falls within the following class of documents referred to by the Tribunal as “Documentation from Bangladesh” at CB 161:
Documentation from Bangladesh
In the report "Bangladesh: Profile of Asylum Claims and Country Conditions", February 1998, section IV.A. "Bangladesh Documentation" (CX31417), the U.S. Bureau of Democracy, Human Rights and Labor observed of Bangladesh that asylum applicants from all political parties submitted "voluminous documentation to support their claims, including in particular outstanding warrants for their arrest if they return to Bangladesh and other alleged court and police documents". It observed that arrest warrants were not generally available to the public, so all such documents should be scrutinized carefully. Many "documented" claims of outstanding arrest warrants had proved to be fraudulent. The US Embassy had examined several hundred documents submitted by asylum applicants; none had proved to be genuine. It also observed that altered or counterfeit newspaper articles were another less frequent but notable example of document fraud [emphasis added]. Similarly, DFAT confirmed that fraudulent and bogus "official" documents were commonly and easily obtainable in Bangladesh [emphasis added](1996, DIEA, Country Information Report No 22/96, CX13160, 5 January).
Consistent with the above, I accept that in the Tribunal’s Findings and Reasons, the article is encompassed in its generic references to “newspaper articles” and “supporting documents submitted by [the applicant]”, as follows:
The Tribunal also considers reliable the evidence from the U.S. Bureau of Democracy, Human Rights and Labor (1998) and DFAT (1996) that document fraud is a common phenomenon in Bangladesh, and that altered or counterfeit newspaper articles have also been produced in support of asylum applications. The Tribunal has expressed its considerable concern above about the truthfulness of his claims to have been an activist within the BNP. This, coupled with the fact that many of the documents he has submitted refer to him as having played this role, that some of those documents name the party incorrectly, and that such documents can be readily obtained fraudulently, leaves the Tribunal unable to be satisfied that the supporting documents submitted by [the applicant], attesting to his being a BNP member, office holder or activist, are genuine [emphases added] (CB 162).
Whilst the Tribunal did not specifically refer to all of the Bangladesh documentation individually in its Findings and Reasons, I do not consider that it was required to make separate findings on each. Highly pertinent in this regard are the observations of the Full Federal Court in WAEE v Minister for Immigration & Indigenous Affairs [2003] FCAFC 184 at [46]:
It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reason. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA; (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason …
… The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
Applying the above reasoning to the present case, the Tribunal sufficiently identified in its decision the relevant documents, but it was not obliged to make specific findings on each item of evidence presented to it, nor was it required to comment on each item individually in its Findings and Reasons, where, as here, the article was subsumed in findings of greater generality, namely that the Tribunal did not believe that supporting documents submitted by the applicant and emanating from Bangladesh were genuine.
In these circumstances, I am satisfied that the Tribunal has properly engaged in “an active intellectual process” in giving proper regard to the article as required of it. I thus detect no jurisdictional error on this basis. I accept the first respondent’s submission in this regard that the article was considered as part of the material to which the Bangladesh fraudulent documents finding applied.
I also accept the submission by the first respondent on these matters that:
[The Tribunal] defined a category of fraudulent documents and it found [the article] fell within … that category … that was open to it on the evidence. It does not come within the Yusuf, very, very narrow analysis of something that should have been considered that would have changed the course of the case. That is not the kind of thing we're looking at here.
We have got findings made independently of those fraudulent newspaper articles that this applicant was not an office holder within the relevant political party and he didn't play any leading role within that political party … (CB 162) … some of the reasons that are offered there is that he wasn't being truthful …(at162.4):
[The Tribunal] has formed the view that he has not been truthful about his roles in relation to the BNP … His claim to have been an organising secretary for five years within the party at local level is implausible, primarily because he was unable to describe in any detail what this role involved. His responses when questioned during the Tribunal hearing, despite being repeatedly invited to describe his activities in practice as organising secretary, remained vague in the extreme. His inability to elaborate beyond generalities, coupled with his ignorance with regard to Mr Sinha’s political career after the 2001 election … is so inconsistent with his claimed level of activity that the Tribunal considers his claim to have been an organising secretary within the BNP from 2000 to 2005, or indeed to have played any role in the party at all, to be highly implausible.
… those findings occur prior to any evaluation of the fraudulent documents. This is not a case where one document of three; where there's a clear finding not challenged by the applicant that those documents are fraudulent. This is not a case where that third document could have, in the Yusuf concept, changed the finding of the Tribunal.
Then the Tribunal goes on to look at the specific documents in relation to the arrest warrant … a separate claim. And again the applicant is not challenging any of those claims (at CB 162-163). the tribunal makes clear findings about the applicant's travel, about what the applicant did in other countries. [A]t the end of the day, on the fraudulent versions of the documents (at 163.7) finds that those documents don't support what the applicant is claiming because they're not genuine, and then concludes (at 163.8):
The Tribunal does not consider plausible and does not accept that [the Applicant] was a “popular, influential leader”( as he claimed), or even a member, of the [BNP]. The Tribunal does not consider plausible, and does not accept that anyone in Bangladesh wishes to harm him, or that he is wanted by the authorities, because of a political opinion imputed to him.
In summary … in relation to ground one; first at a factual level the Tribunal did consider the article said to have come from Singapore. It included … that article in its findings in relation to fraudulent documents emanating from Bangladesh, including newspaper articles; and thirdly, that article was not of a kind that would have provided corroboration for the applicant's claims in the context of the Findings and Reasons that are not challenged by the applicant.

Accordingly, Ground 1 of the amended application is rejected.

Ground 2 of the amended application

Ground 2 of the amended application states that:
The Tribunal further committed jurisdictional error in circumstances where it failed to act judicially and make a determination authorised by the Act in circumstances where the practical requirements of fairness in section 420 required the Tribunal to make inquiries pursuant to section 427(1)(d) of the Migration Act about the genuineness of the magazine article that was published in Singapore and that was tendered in support of the applicant’s claims.
Particulars:
a. The applicant repeats and relies on particulars to Ground 1 above.
b. The need for further inquiry about the relevant article was obvious given that it contained a contemporaneous account of the applicant’s claims of fear of persecution in Bangladesh.
c. There was no impediment, practical or otherwise, to the conduct of such an inquiry by the tribunal.
In his written submissions, Dr Azzi relies on the submission made in relation to ground 1 above in the present context that the Tribunal did not have regard to the magazine article from Singapore such that it committed jurisdictional error. He further submits “concomitantly”, however, that:
notwithstanding the applicant’s case that the Tribunal did not have regard to the Singapore magazine article, it is also submitted that the Tribunal failed to afford the applicant a fair hearing by reason of its failure to inquire into the authenticity of the Singapore article given its potential to corroborate the applicant’s claim and given the great lengths the Tribunal went to in discrediting the authenticity of all the documents emanating from Bangladesh, predominately, because of high incidences of document fraud and forgery.
By not doing so, it may be inferred that the Tribunal considered the Singapore article a fabrication and of no value because it details incidents which were found independently by the Tribunal not to have occurred which, in turn, implies that the applicant was involved in some sort of elaborate forgery or scam in being involved or being responsible for the creation of the article (cf Applicant M164/2002 at [68]).
Dr Azzi relies on the observations of Lee J (with whom Tamberlin J agreed) in Applicant M164/2002 v Minister for Immigration & Indigenous Affairs [2006] FCAFC 16 to submit that it was precisely those same circumstances which “gave rise to practical fairness considerations requiring the Tribunal to resort to its investigatory powers under section 427(1)(d) of the Act to determine the authenticity or otherwise of the Singapore article.” In particular he pointed to His Honour’s remarks at [89]-[92] that:
In its treatment of the process of review the Tribunal failed to accord the appellant the fair procedure required by the Act. There was no material before the Tribunal on which it could make the finding that the documents presented by the appellant had been fabricated for the purpose of the claims. The statement by the Tribunal that the documents were not genuine was a bare assertion. The Tribunal did not identify in any respect how the documents could be so characterised. This was not a case where the Tribunal, on proper grounds, had already determined that the substantive claims of the appellant were dishonestly made and, therefore, any documentary material that purported to corroborate those claims necessarily bore the same stamp. If an applicant’s claims are palpably fanciful, or important elements thereof are shown to be false, those circumstances will permit the Tribunal to disregard other material presented by the applicant in support of those claims. (See: Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 per Gleeson CJ, McHugh J at [84]-[85]).
However, serious findings of forgery, fraud or perjury cannot be based on a superficial examination of relevant events and materials, particularly where the conclusion reflects no more than a suspicion held by the Tribunal, and where that suspicion remains untested by reasonable use of powers available to the Tribunal to have further enquiries made in exercise of the Tribunal’s inquisitorial function [emphasis added].
If the Tribunal fails to carry out a review proceeding that accords with practical requirements of fairness, it conducts a proceeding, and makes a determination, that is not authorised by the Act. That is to say the Tribunal does not have "jurisdiction" or authority to purport to make such a decision and the decision will be subject to judicial review by issue of constitutional writs. (See: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 per Gleeson CJ at [5]-[9]; McHugh, Gummow JJ at [34]-[37]; Kirby J at [116], [127]-[128], [138]).
The Tribunal’s treatment of the documentary material relied upon by the appellant to support her claims tainted the review process with fundamental unfairness. For the reasons outlined above the decision of the Tribunal was not a determination made in accordance with the Act. (See: Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; (2003) 197 ALR 389 per Gummow, Callinan JJ at [32]; VEAL at [10]).
On this basis, Dr Azzi submits that there was an “obvious” need for the Tribunal to exercise its powers under s.427(1)(d) in circumstances where the implied finding underlying the Tribunal’s decision was that the applicant had constructed an elaborate fraud before arriving in Australia such that there was “substantial public interest in having that fraud exposed (Applicant M164/2002 at [68]).”
He further submits that there was an “obvious” need to investigate the authenticity of the article “given its propensity to corroborate the applicant’s claim (see Ground 1 above) in circumstances where there were no practical impediments to the exercise of that power given that the name of the editor of the magazine, the address, phone and fax number of the publisher as well as its email address were readily available.” He relies on the following remarks of Lee J in Applicant M164/2002 at [73] and [76]) in support of this proposition:
Notwithstanding the difficulties in the task undertaken by the Tribunal a process that was practically fair had to be followed. The Act seeks to maintain that safeguard by making it clear in s 430 that in making its decision the Tribunal must prepare a written statement that sets out the decision, the reasons for the decision, the findings made on any material questions of fact and refers to the evidence or the other material on which the findings of fact were based …
If the material before the Tribunal and the circumstances are such that the need for further inquiry is obvious, and no impediment to the conduct of such an inquiry is apparent, the failure of the Tribunal to exercise the power and proceeding instead to make a decision adverse to an applicant may point to a conclusion that the Tribunal has denied the applicant the conduct of a fair proceeding. In particular that issue will arise where the Tribunal is prepared to draw adverse inferences from material before it on grounds that are slight and in the absence of the assistance to the hearing process that would be provided to the Tribunal by reasonable use of the powers provided under s 427(1)(d).
In these circumstances, he submits that the Tribunal “failed to carry out its decision-making function rationally and reasonably and not arbitrarily such that it did not make a determination authorised by the Act.”
In his oral submissions, Dr Azzi submits that the Tribunal:
was satisfied that all the documents from Bangladesh were forged and concocted and it had credible reasons for that. There was the Country Information and also on the face of the document there were problems with it.
For example the Bangladesh Nationalism Party so it says, well I can see that is a problem. So there were credible reasons why it refuted the corroborative value of any of these documents, except the magazine article. Now, … the Singapore magazine we say doesn't fall into the category of documents from Bangladesh and … we say that … practical fairness dictated the Tribunal then resort to its investigative power, investigatory powers under section 427(1)(d) of the Act and that … for the Tribunal to exercise that power …
There is Country Information about Bangladesh arrest warrants, police, official documents and … we know that they are forged. They are not generally publicly available but what about this magazine article. Now if this is happening on a regular basis that the Tribunal is seeing this then the Tribunal has to do more than just sit there and say "I don't believe you because it says all documents in Bangladesh are forged therefore this is about Bangladesh, it is the voice of Bangladesh. Your brother sent it to you I know and I know it is published in Singapore."
I have taken your Honour to earlier, the magazine inside page has all this information, it has a phone number, it has an email address, it has a name of a party and as I have said the Tribunal had indicated that … document fraud in Bangladesh is rife and that applicants for asylum from Bangladesh are generally known to produce voluminous documents which are not true in support of their claim so it is a bogus claim and in this instance the Tribunal found, … the arrest warrant, the order sheet, the letter of support, the newspaper articles, all are bogus, because on their face these documents have disconcerting features.
… But we don't know whether the Tribunal found a problem with [the article], but say the Tribunal then considered this along with all the other documents from Bangladesh as forged, as concocted or fabricated, then … but your Honour has to sort of briefly glimpse at it and say, "Well is there something wrong with this?" We say there isn't. On its face then Applicant M164 says there is an obvious need to investigate its veracity.
… [Section] 420 says that the Tribunal must act fairly and judicially; the contents of … that fairness we say is not touched by 422B. Lai Lat confirms that it is the natural justice hearing rule, not procedural fairness, that is caught by 422B … paragraph 66, we say is critical, and … it confirms … that procedural fairness steps - and this is paragraph 66:
What was intended was that sub-division (ab) provide comprehensive procedural codes which contain detailed provisions for procedural fairness but which exclude the common law natural justice hearing rule.
What Applicant M164 seeks to do is … to further elucidate the content of the procedural fairness under the Act found - its foundation or basis being section 420 to act judicially and then looking to what provisions within the Act then inform that duty. And one of them was 427(1)(d). And his Honour got around the non-directory, mandatory language of 427(1)(d) and if I can take you to 427(1)(d). The Powers of the Refugee Review Tribunal:
For the purposes of the review of a decision the Tribunal may (d) require the secretary to arrange for the making of any investigation or any medical examination the Tribunal thinks necessary with respect to the review and to give to the Tribunal a report of that investigation or examination.
It is the word "may". There is no compulsion on the Tribunal to exercise it but the way I read Lee Js decision is that the Tribunal can’t just sit on its hands, imply that the applicant is being involved in some elaborate concoction and not use its investigative powers. It is procedurally unfair for the Tribunal not to resort to it. It is there for a purpose and it is to be invoked when there is an obvious need to resort to it and the obvious need for it … appears at paragraph[s] [75- 77] of Applicant M164:
Although it is plain that 427(1)(d) of the Act provides the Tribunal with a discretion to initiate investigation and receive a report and does not impose a duty ... (reads) ... inquisitorial body to enquire to be informed and to decide.
If the material before the Tribunal and the circumstances are such that the need for further enquire is obvious and no impediment to the conduct to ... (reads) ... adverse inferences from the material before it on grounds that are slight and in the absence of the assistance of the hearing process that would be provided to the Tribunal by reasonable use of the powers provided under 427(1)(d).
The obligation upon the Tribunal to conduct a fair hearing is confirmed by terms of 420 which whilst instructing the Tribunal to provide a mechanism of review ... (reads) ... must act according to substantial justice and the merits of the case.
[Section] 422B wasn't of concern to the Court there but we say it is - the observations of the Full Court, the majority, apply equally because this is not part of the natural justice hearing rule. It is nothing to do with common law it is about the procedures that are available - fair procedures that are fairly available under the Act and that the Tribunal is required to exercise.
And as I said, … his Honour explained when the Tribunal, albeit it has discretion … to invoke the section, it is when the Tribunal should invoke it because in practical fairness if you are implying that this applicant is a forger then you have got the provisions under the Act and it is also in the interests of the public, Australian government and the public, that this fraud be exposed.
… it was a highly relevant article it could have corroborated the 10 September incident that the Tribunal found critical … We say it has the powers to investigate the authenticity of the magazine article; there is nothing that it said that gave any comfort or confirms that it had proper regard to it that it didn't engage intellectual process to debunking its authenticity, it did nothing of the sort. It didn't resort to 427(1)(d) I had the power to do, there were no impediments.
There were contacts, phone numbers, it could have done whatever it needed to. It didn't. It just sat on its hands and said, "Look, everything coming from Bangladesh is fraud and therefore I can't accept your claims" albeit there are other partial reasons why his claims weren't accepted but that is not the entirety of it. Those documents could have corroborated.
In conclusion, Dr Azzi points to “the distinction” between procedural fairness and the natural justice hearing rule and submits that:
[section] 422B contains an exhaustive list of natural justice hearing rule, no more common law. But there's still the procedural fairness within the Act, the provisions within the Act. So the Act provides sections which then require - would set up procedural fairness, what constitutes procedural fairness. One of them is that the Tribunal can engage in a procedure of investigation. It's a discretionary.
Applicant M164 says that discretion is to be exercised … to act according to the Act, to the provisions of and objects of the Act and this is what M164 says is when there's an obvious need to use it. The discretion is taken out. Lay Lat doesn't touch that. Lay Lat says; if you're going to rely on it - because what M164 is relying on is a provision already within the Act. It's not seeking to go back to some common law generic principle. It's saying; there's an obvious need, if there's - because the Commonwealth needs to know, the Australian public needs to be protected and bogus claims need to be exposed. It's nothing to do with the natural justice hearing rule. So in that sense Applicant M164 is very much alive.
[W]e say Lay Lat is the case … that defines the scope of 422B. And paragraph 66 makes a distinction between procedural fairness and natural justice hearing rule. And it confirms that. That's what 442B and the explanatory memorandum does or do.
I take as the starting point in relation to amended ground 2 that the Tribunal is not required to uncritically accept any or all of the allegations made by the applicant: Randhawa v the Minister of Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451-2. As Heerey J observed in Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 1105 at [7]:
A decision-maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion by an applicant is not made out.
Whilst the Tribunal has the power under s.424 of the Act to “get any information that it considers relevant” and to “invite a person to give additional information”, these powers are permissive not prescriptive. As recognised by the Full Federal Court in Minister for Immigration & Multicultural & Indigenous Affairs v VSAFof 2003 [2005] FCAFC 73 at [20]:
If his Honour meant that the Tribunal should have sought information from other sources available to it under s.424, the existence of such an obligation is denied by a substantial body of authority. See Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (with whom Gleeson CJ agreed) and at [124] per Callinan J; Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553 at 561 and SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90 at [8]; SJSB at [16].
Whilst the Tribunal may choose to exercise this information-gathering power, as well as its other investigative and information-gathering powers under ss.426 and 427 of the Act, it has no obligation to do so. It is well-settled that a decision-maker is not required to make the applicant’s case for him or her: Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 at 169-70; SZBEL at [40]; Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 at [57] and [1]; WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 at [73].
Indeed, an applicant will have to supply the relevant facts of his or her case in as much detail as is necessary to enable the Tribunal to establish the relevant facts. As stated by the Full Federal Court in Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 at [76]:
In an inquisitorial process, it was for the respondent to put whatever evidence or argument he wished to the decision-maker to enable her to reach the requisite state of satisfaction.
As further observed by the High Court in Abebe v Commonwealth (1999) 197 CLR 510 at [187]:
It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.
I note the clear qualification placed on these general principles in the remarks of Kenny J in Minister for Immigration and Citizenship v Le [2007] FCA 1318 (2007) 242 ALR 455, in particular at [63] that:
A failure by a decision maker to obtain important information on a critical issue, which the decision-maker knows or ought reasonably to know is readily available, may be characterized as so unreasonable that no reasonable decision maker would proceed to make the decision without making the inquiry: see Prasad at FCR 169-70; ALR 562-4 per Wilcox J …
And at [77]:
this is one of those rare or exceptional cases where a decision-maker acting reasonably would have made some further inquiry before making a decision.
It is in this context that I note the remarks of Wilcox J in Prasad as quoted by Kenny J, with emphasis, in Le at [64] that:
Equally, [a power] is exercised in an improper manner if the decision-maker makes his decision – which perhaps in itself, reasonably reflects the material before him – in a manner so devoid of any plausible justification that no reasonable person could have taken this course, for example by unreasonably failing to ascertain relevant facts which he knew to be readily available to him.

I also note the endorsement of the remarks of Kenny J in SZJBA v Minister for Immigration and Citizenship [2007] FCA 1592 by Allsop J at [60]:
The same conclusion is to be reached by the application of the principles that in certain circumstances the decision of a Tribunal or decision-maker will be vitiated if some inquiry is not made. Most recently, Kenny J examined these cases in her Honour’s comprehensive judgment in Minister for Immigration and Citizenship v Le [2007] FCA 1318. It can readily accepted, as her Honour said, that there is no general obligation to inquire found in s 424(7), nor is there a general obligation to initiate inquiries or to make an applicant’s case for him or her. I refer, without repetition, to the long list of cases referred to by Kenny J in Le [2007] FCA 1318 at [60]. The absence of such a general obligation of inquiry can be accepted, without denying the limited proposition supported by numerous other cases that, in certain exceptional cases, a failure to make some inquiry may ground a finding of jurisdictional error if it was plainly necessary to make some reasonably straightforward inquiry before the making of the relevant decision: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70. Kenny J discusses this in Le at [60]-[67]. I adopt without repetition her Honour’s reasons. The only qualification that I would make to her Honour’s reasons is that the rubric of Wednesbury unreasonableness may cover circumstances that amount to jurisdictional error and those that amount to error within jurisdiction. It is unnecessary here to explore such possible differences. Here, the failure to take the steps, which in my view were required in the review process, subverted an opportunity to respond to an invitation contemplated or authorised by the statute as part of the review process and so amounted to jurisdictional error.
Applying the above reasoning by Wilcox J in Prasad, I consider that there are significant reasons in the present case, which provide a “plausible justification” for the Tribunal not seeking to investigate the authenticity of the article.
Firstly, it did not base its findings only on these documents emanating from Bangladesh (see CB 162-163). I refer to the submissions by the first respondent under ground 1 above on these matters and note that the Court has accepted those submissions. In particular, in this regard, the Tribunal found at the outset of its Findings and Reasons that the applicant had “not been truthful” about his role in the BNP; that his claim to have been the organising secretary for five years was “implausible”; that his responses were “vague in the extreme”; and that his “inability to elaborate beyond generalities coupled with his ignorance” in regard to Mr Sinha’s political career after the 2001 election “is so inconsistent with his claimed level of activity” that the Tribunal considered his claim to have been organising secretary “or indeed to have played any role in the party at all”, to be “highly implausible”.
Pertinent in this context therefore are the following findings made by Lee J, (with whom Tamberlin agreed), in Applicant M164/2002 at [89], and on which Dr Azzi seeks to rely, which stand contrary to the present case:
This was not a case where the Tribunal, on proper grounds, had already determined that the substantive claims of the appellant were dishonestly made and, therefore, any documentary material that purported to corroborate those claims necessarily bore the same stamp. If an applicant’s claims are palpably fanciful, or important elements thereof are shown to be false, those circumstances will permit the Tribunal to disregard other material presented by the applicant in support of those claims. (See: Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 per Gleeson CJ, McHugh J at [84]-[85]).
Secondly, the Tribunal found significant problems on their face with other of the “Bangladesh Documentation”, a finding which the applicant concedes.
Thirdly, the Tribunal took cognizant of independent country information that noted that document fraud is a common phenomenon in Bangladesh and more particularly, that “altered or counterfeit newspaper articles have also been produced in support of asylum applications” (CB162).
Fourthly, the applicant had not raised the 10 September 2006 incident, (of which the article is said to be corroborative), in his original protection visa application (which the Tribunal suggested to the applicant would have been of “sufficient significance” to him that he would not have needed any advice in order to mention it (CB 155).
To the extent that the applicant relies on the authority of Applicant M164 to contend that the practical requirements of fairness in s.420 of the Act required the Tribunal to make enquiries pursuant to s.427(1)(d) of the Act about the genuineness of the article, s.420 provides that:
Refugee Review Tribunal's way of operating
(1) The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
(2) The Tribunal, in reviewing a decision:
(a) is not bound by technicalities, legal forms or rules of evidence; and
must act according to substantial justice and the merits of the case.
Subsection 427(1)(d) of the Act provides that:
Powers of the Refugee Review Tribunal etc.

(1) For the purpose of the review of a decision, the Tribunal may:
(d) require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination

I accept that s.420 and Applicant M164, and hence the applicant’s reliance on them, must now be read in light of the subsequent legislative amendment which provides that Part 7 Division 4 of the Act provides an exhaustive statement of the natural justice hearing rule: s.422B of the Act.

Section 422B of the Act provides that:
Exhaustive statement of natural justice hearing rule
(1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
(2) Sections 416, 437 and 438 and Division 7A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.
(3) In applying this Division, the Tribunal must act in a way that is fair and just.
I further accept that the Full Court in Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 at [60]-[70], conclusively settled the prior division of opinion of single judges of the court over the proper construction to be given to s.51A and the corresponding provisions of ss.357A and 422B. Their Honours held at [64]-[70] that:
… reference to the Explanatory Memorandum and the Second Reading Speech makes it plain that s 51A and the related provisions of the Act, were intended to overcome the effect of the High Court’s decision in Re Minister for Immigration and Multicultural Affairs; Ex Parte Miah [2001] HCA 22; (2001) 206 CLR 57 ("Miah").
Heerey J set out in VXDC at [23] – [25] the relevant passages from the majority judgments in Miah and the salient portions of the Explanatory Memorandum and the Second Reading Speech. The words "exhaustively state" are, as Heerey J pointed out, picked up in the Explanatory Statement from the majority judgments in Miah. We agree with the observation at [30] in VXDC that the drafters of the Explanatory Statement and the Minister could hardly have made the intention of the 2002 amendments any clearer.
What was intended was that Subdivision AB provide comprehensive procedural codes which contain detailed provisions for procedural fairness but which exclude the common law natural justice hearing rule.
Other aspects of the common law of natural justice, such as the bias rule are not excluded; see VXDC at [27].
The intention to exclude the common law rules in the present case is especially plain when s 51A(1) is read with s 57(3). The Legislature could hardly have intended to provide the full panoply of common law natural justice to visa applicants who are required to be outside Australia when the visa is granted, while conferring a more limited form of statutory protection upon onshore applicants.
Counsel for the respondent submitted that the words "in relation to the matters it deals with" mean that the decision-maker must, in each case, consider whether there is an applicable common law rule of natural justice and then examine the provisions of subdivision AB to see whether it is expressly dealt with.
We reject this submission. As was said in VXDC at [31], the decision-maker is likely to be a person without legal qualifications. Parliament could not have intended that "the uncertainties of the common law rules were in some unspecified way and to some unspecified extent, to survive” [emphasis added] (and see SZEEF v Minister for Immigration & Citizenship [2006] 233 ALR 331 at [24]-[28].
I accept the submission by the first respondent in this regard that:
Applicant M164/2002 must now be examined within the application of s.422B and accepting there is no duty to inquire. And once there is no duty to inquire there's a restriction on … what a Tribunal must do to comply with its obligations under procedural fairness within the Act itself … one can't use s.420 to get over what's already set out in the procedural fairness obligations in the next division. More importantly … Applicant M164/2002 is a very unusual case.
I further accept that Applicant M164/2002 is an “unusual case” and can be distinguished from the present case. As observed by Tamberlin J, at [118], (who agreed with the reasoning of Lee J), that:
To some extent, the reasons for decision reflect such a closed state of mind in relation to the claims of the appellant that there was, on the face of the reasons, ostensible bias. Consequently, there was a failure by the Tribunal to properly exercise its jurisdiction in such a way as to give rise to jurisdictional error. The two central documents raised were dismissed in a summary fashion without any proper consideration and the other comments in relation to the newspaper items and the references to "implausibility" support this conclusion. Had these documents been considered or inquiries made regarding their authenticity, there may have been a different finding on credibility.
Evidently, the Tribunal’s findings of fact were so extreme in that case that the Full Court considered there was ostensible bias. This is clearly not the case in the present case. I accept the following submission by the first respondent on the point:
We don't have a one-off document where the Tribunal makes a call on its gut reaction - which the Full Court have said you can't do that. You need to set out proper reasons. What we have here is we have a document which is accepted as … emanating from Bangladesh which is identical to documents that did come from Bangladesh and the Tribunal has found is fraudulent that deal with factual matters that the tribunal has found did not happen by evaluating the credibility of the applicant. So the very unusual situation in Applicant M164/2002 where the circumstances were such that the Full Court did not think it sufficient for the Tribunal just to say it thought it was fraudulent; but that's not our case.
We have very detailed reasons and findings on truthfulness and we have findings that aren't challenged on the fraudulency of other documents, including the so-called official documents, two other newspaper articles of finding that they're fraudulent, a third article, said to be published in a Singapore magazine but provided from Bangladesh in relation to the same matters already dealt with, if not identical to the previous two articles. Very unusual circumstances that does not impose, if there could be imposed, a duty to inquire.
I am thus satisfied, applying the above reasoning of Wilcox J in Prasad, that the Tribunal’s exercise of its power to proceed to determine the case following the hearing, without making further enquiries as to the authenticity of the article, was not “so devoid of any plausible justification that no reasonable person could have taken this course.” Contrary to the applicant’s assertion, I do not accept that this is one of those “rare and exceptional cases where the Tribunal acting reasonably would have made some further inquiry before making a decision”: Le at [77].
Having properly considered the evidence before it, the Tribunal in this case was thus under no obligation to conduct any further investigation before concluding that the applicant did not have a well-founded fear for a Convention reason. I therefore detect no jurisdictional error on this basis.
Accordingly, Ground 2 of the amended application is rejected.

Conclusion

The Court finds that the Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act this Court has no jurisdiction to interfere.
The application and the amended application before this Court are dismissed.

I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of Orchiston FM

Associate: Duncan Maconachie

Date: 9 September 2008